STATE OF NORTH CAROLINA
v. Durham County
No. 99 CRS 56226
RICKIE ROEMERIA WELLS,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Stacey A. Phipps, for the State.
Brannon Law Firm, P.L.L.C., by Anthony M. Brannon, for
defendant-appellant.
ELMORE, Judge.
On 6 October 1999, defendant pled guilty to obtaining property
by false pretenses. Pursuant to the terms of the plea arrangement,
the trial court imposed a suspended sentence of eight to ten months
and placed him on supervised probation for twenty-four months. The
trial court ordered defendant to serve an active term of thirty
days and to pay $1,500.00 in restitution, $200.00 in attorney's
fees and $111.00 in costs. Defendant signed the judgment to
indicate that he had “received a copy of this judgment which
contains all of the conditions of [his] probation and [he] agree[d]
to them.” On 28 March 2001, defendant's probation officer filed a
violation report which alleged that defendant had violated the
“monetary condition of probation” and a “special condition of
probation.” At the probation violation hearing on 19 November
2001, the State introduced evidence that defendant was $1,264.00 in
arrears on his original obligation of $1,811.00. Larry Watkins,
defendant's probation officer, testified that defendant had made no
payments on the monetary condition of probation. Mr. Watkins
further testified that defendant had tested positive for marijuana
in Georgia on 29 September 2000, 5 January 2001, 18 January 2001,
and 1 February 2001. Defendant, who was proceeding pro se,
conducted the following cross-examination of Mr. Watkins:
THE DEFENDANT: Knowing that you didn't know my
case, why wasn't I contacted with you guys,
and I left several messages with the
supervisors?
[THE ASSISTANT DISTRICT ATTORNEY]: Objection.
THE COURT: Overruled.
THE DEFENDANT: That's all I had to ask him.
THE COURT: You can come down. Is that all for
the State?
The State then rested its case, and defendant informed the trial
court that he wished to testify.
Defendant initially testified that he was never tested for
drugs in Georgia, but he subsequently testified to being tested for
drugs on 3 January 2001. He denied having been tested on the three
other dates to which Mr. Watkins had testified. While defendant
acknowledged that he owed restitution and had made no payments,defendant claimed he did not know the amount and had been “calling
the State of North Carolina constantly” because he did not know how
much he owed. He admitted that he was working during that period
and that he never went back to the office of his probation officer
to find out the amount of money which he was obligated to pay. In
his final statement to the trial court, defendant informed the
trial court that he “would like to be able to pay that fine, Your
Honor, whatever the restitution that I owe.”
The trial court found that defendant had violated both the
monetary condition of probation and the special condition of
probation that he not use any illegal drug or controlled substance.
In addition, the trial court found that defendant had “violated
each condition willfully and without valid excuse; and each
violation occurred at a time prior to the expiration or termination
of the period of the defendant's probation.” After concluding that
defendant had violated a valid condition of probation and that
continuation was not appropriate, the trial court revoked
defendant's probation and activated his sentence. From the trial
court's judgment, defendant appeals.
Defendant first argues the trial court erred by not allowing
him to cross-examine Mr. Watkins. He erroneously claims “the trial
court cut [him] off in mid-sentence.” The record clearly shows
that defendant completed his question and that the trial court
overruled the State's objection. The trial court did not limit
defendant's opportunity to cross-examine Mr. Watkins. Defendant
did not follow up on his question and failed to object when thetrial court allowed Mr. Watkins to be dismissed. The trial court
properly exercised its discretion and dismissed the witness when
defendant failed to pursue his cross-examination. See N.C.R. Evid.
611; State v. Coffey, 326 N.C. 268, 290, 389 S.E.2d 48, 61 (1990).
This assignment of error is overruled.
Defendant next contends there was insufficient evidence to
support the trial court's finding that he had willfully and without
lawful excuse violated the conditions of probation. He argues he
presented multiple justifiable excuses for his non-compliance.
Defendant's argument is not persuasive.
“All that is required to revoke probation is evidence
satisfying the trial court in its discretion that the defendant
violated a valid condition of probation without lawful excuse.”
State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987).
The breach of any one condition is sufficient grounds to revoke
probation. State v. Seay, 59 N.C. App. 667, 670-71, 298 S.E.2d 53,
55 (1982), appeal dismissed and disc. review denied, 307 N.C. 701,
301 S.E.2d 394-95 (1983). When a probation revocation hearing is
based upon a defendant's failure to pay a fine or restitution,
which was a condition of his probation, the defendant has the
burden of offering “evidence of his inability to pay money
according to the terms of the [probationary] judgment.” State v.
Williamson, 61 N.C. App. 531, 534, 301 S.E.2d 423, 426 (1983).
While defendant presented some evidence for his failure to
pay, the State's evidence and portions of defendant's own evidence
contradicted his testimony. Although he asserted he did not knowthe amount which he owed, he admitted that he never went back to
the office of his probation officer to find out the amount and
conceded he made no payments. His claim of ignorance as to the
amount owed is belied by his signature on the judgment that
contained the terms of his probation and the amounts which he owed.
Defendant testified that he was working during the relevant time
period. He told the trial court that he “would like to be able to
pay that fine . . . whatever restitution” he owed, which further
supports the inference that he had the ability to comply.
In its judgment and commitment upon revocation of probation,
the trial court found “[a]fter considering the record . . . ,
together with the evidence presented by the parties and the
statements made on behalf of the State and the defendant,” that
defendant had violated the conditions in paragraph one (the
monetary condition of probation) and paragraph five (special
condition of probation) of the violation reports. The trial court
further found that defendant had violated the condition “willfully
and without valid excuse[.]” These findings were sufficient to
show that the trial court had considered and evaluated defendant's
testimony and evidence. On the basis of this evidence and other
testimony, the trial court in its discretion determined that
defendant violated a valid condition of probation without lawful
excuse. See Tozzi, 84 N.C. App. 517, 353 S.E.2d 250. Accordingly,
we affirm the trial court's revocation of defendant's probation and
activation of the suspended sentence.
Affirmed. Judges TIMMONS-GOODSON and CALABRIA concur.
Report per Rule 30(e).
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